Following recommendations of the Solicitor General, the US Supreme Court yesterday agreed to hear the KSR v. Teleflex case which apparently hinges on the motivation/suggestion/teaching test developed by the Federal Circuit for dealing with questions of obviousness.
it is some 25 years since the US Supreme Court has involved itself with the obviousness / inventive step criterion. Some would argue that with a Specialized Federal Court of Appeal there is no need for such eminent Justices to get involved in these debates. Furthermore, Supreme Court Justices rarely have scientific or technical training.
I think too many patents issue that seem obvious to the layman and trivial to practitioners in the relevant art are issuing in the US, and the divergent standards on patentability between the relatively low standards of the US and the tougher standards in Europe are such that review of current practice and new guidelines to district court judges and to Examiners can’t be bad.
The specialized Court of Appeal has shown itself to be overly enthusiastic in upholding patents that never should have been issued. Thus a high level Judicial review is something to be applauded.
